Tag: Section 1201

DMCA Hearing 5: More Consensus Than You Might Think on Section 1201

On September 16th, the IP Subcommittee of the Senate Judiciary Committee held hearing number five in its ongoing review of the 22-year-old Digital Millennium Copyright Act. The subject was Title I of the DMCA, also referred to as §1201, which proscribes the circumvention of Digital Rights Management (DRM) technologies used to protect copyrighted works distributed through digital systems. When the DMCA was enacted in 1998, as the market was shifting away from the purchase of physical copies of works, DRM was predominantly used to control licensed access to creative content (e.g. eBooks) that falls under traditional categories of copyright law.

With regard to the ordinary consumption of music, movies, TV shows, books, etc., §1201’s protections have been highly successful for producers and consumers. Critics who scorn DRM on principle (i.e. hate copyright) are unlikely to acknowledge that all the variety and instant access we enjoy—from Audible to Netflix—is entirely founded on DMCA’s anti-circumvention provisions. At the same time, readers are probably familiar with, and sympathetic to, complaints about DRM preventing farmers from repairing tractors, patients from accessing medical data, security researchers from analyzing vital systems, or the blind and deaf from accessing reading material. Yet, despite a considerable volume of headlines on these issues, last week’s testimony sounded more like consensus than conflict.

Professor Blake Reid, Director of the Samuelson-Glushko Technology Law & Policy Clinic, testified on behalf of various constituencies that have been unintentionally harmed by §1201 and addressed, for instance, the matter of access to electronic books for the blind and deaf. Although organizations representing blind and deaf readers have successfully petitioned the Copyright Office for §1201 exemptions in its triennial rulemaking process, Reid and others assert that the requirement to re-apply every three years is a high burden for these constituencies, merely to maintain exemptions that have no opposition.

Not surprisingly, the Copyright Office seems to agree with Reid on this point. In her testimony before the committee, General Counsel Regan Smith stated that because the statute does not give the Office authority to grant permanent exemptions, Congress could make the process more efficient and fair by amending §1201 to explicitly and permanently exempt deaf and blind readers, along with other frequent petitioners (e.g. security researchers), who have consistently been granted exemptions without opposition. It stands to reason that the Copyright Office would prefer not to spend its limited resources reviewing and re-reviewing the petitions of these parties, to say nothing of the fact that many interests in circumventing DRM often fall under the jurisdictions of other agencies, like the EPA, more than the Library of Congress.

The apparent consensus between the Copyright Office and many of the stakeholders represented by Professor Reid suggest to me that all those headlines, which have fed a lot of §1201 rancor over the years, may be outdated with respect to the task before the IP subcommittee today. At least in the consideration of various categories of petitioners, there appears to be ample room for negotiating a compromise bill calling for a wider spectrum of permanent exemptions.

Where Conflict Persists

More generally, however, there remains an ideological split over the nature of §1201. Reid and others view the prohibition against circumvention of DRM as a prior restraint on those parties who would only circumvent in order to engage in otherwise legal conduct. Thus, these critics of Title I would like Congress to amend the statute to affirmatively state that circumvention for non-infringing purposes is not a violation of law. The Copyright Office does not endorse this nexus between circumvention and infringement. Especially with regard to §1201’s prohibition against trafficking in devices used for circumvention, this nexus would undermine the fundamental purpose of the statute, which is the aforementioned fostering of eBooks, streaming platforms, and all those services we enjoy.

Personally, I am not unsympathetic to Reid’s view, at least in principle. If a documentary filmmaker uses software to rip a scene from a DVD to incorporate into her film in a manner that would be considered a fair use, the act of circumvention does seem incidental to her otherwise legal conduct, especially because the DRM is there to protect copyright, which, in this hypothetical, is not being infringed. So, I get where Reid et al are coming from when they argue that the act of circumvention itself should not be a violation.

On the other hand, these types of one-off examples are at least a little bit flimsy as practical matters. If the doc filmmaker uses AV clips in a manner consistent with fair use, the owner of those clips is highly unlikely to file a viable legal complaint. And absent a solid copyright infringement claim, the prospect that the rightsholder will file suit solely on an allegation of circumvention seems like a dubious path for most attorneys to follow.

Doubtless, Reid and I could play Pong with different examples tilting toward one hypothetical outcome or another. But it seems to me that the more exemplary users represent a class (e.g. teachers), the more they belong in the above discussion about candidates who deserve permanent exemption, rather than serve as a rationale to codify an infringement nexus. In fact, both teachers and documentary filmmakers have been granted limited exemptions in prior USCO rulemakings and are both viable classes for the committee’s further consideration.  

If I can presume to read between the lines of the testimony, the Copyright Office has an interest in resolving many of the unanticipated conflicts that have arisen from the protection of software integrated into devices and machines that are not typically within the scope of copyright law; but the Office also has a duty to §1201’s original purpose to secure the rights of copyright owners to control the manner in which their creative works are accessed. Endorsing an infringement nexus would perhaps resolve the former, but it would also betray that latter. Hence, a more nuanced approach to legislative adjustment should be sufficient to satisfy all parties with balanced results.

See full summary of the hearing at Copyright Alliance.

Streamlined 1201 Rule-Making Procedure & EFF’s Constitutional Challenge

In July of 2016, the Electronic Frontier Foundation filed a lawsuit alleging that Section 1201 of the Digital Millennium Copyright Act (DMCA) is unconstitutional.  More recently, in September, Cory Doctorow announced the EFF’s “Project Apollo” vowing to “end DRM within a decade.”  I personally tend to think of such high-drama tilting at windmills as mostly a fund-raising strategy for EFF, and one detail from the Copyright Office’s Final Report on the Seventh Triennial Proceeding demonstrates why.

For review, Section 1201 of the DMCA contains the statutes prohibiting the circumvention of technical protection measures (TPM) used to protect copyrighted works stored on digital media.  Also known as Digital Rights Management (DRM), technical measures generally means encryption software used to prevent access to digital files like movies stored on DVDs or the software running systems in our cars.  

By law, the USCO must conduct a triennial review of Section 1201 and consider petitions for exemptions to its prohibitions.  Petitioners are grouped into various “Classes” based on proposed rationales for exemptions.  For instance, exempted classes have included researchers, who want to circumvent TPM in order to test safety or security systems; teachers, who want to “rip” film clips from DVDs for use in classroom instruction; or creators like documentary filmmakers who circumvent TPM in order to copy segments of motion picture clips for their films. 

Does the New Streamlined Process Militate Against the Constitutional Challenge?

A key allegation in EFF’s constitutional challenge to 1201 is that because the triennial review is slow and cumbersome, the process amounts to a prior restraint on otherwise protected speech.  In particular, the need for an exempted class to re-petition the USCO every three years places a substantial burden on parties wishing to engage in conduct protected by the First Amendment—and which has previously been exempted by the Copyright Office. 

But, as alluded to in my July post, one flaw with this challenge on First Amendment grounds is that the USCO actually agreed with the complaint about the re-application process and so implemented a new rule mandating that previously exempted classes need not reapply unless new objections are raised that require fresh review, for instance based on a change in law or market practices.

This most recent rulemaking procedure was the first implementation of the new streamlined process, and it appears to have had the desired effect.  Nine Classes of exemptions were renewed, including seven sub-categories in the Audio-Visual Class.  So, for instance, the teachers exempted three years ago are still exempted without the need to reapply.  In another example, the Motor & Equipment Manufacturers Association has now endorsed the exemption it objected to during the last rulemaking process, now referring to the USCO decision “as striking an appropriate balance between encouraging marketplace competition and innovation while mitigating the impact on safety, regulatory, and environmental compliance.”  

Another notable detail from this review, relative to EFF’s lawsuit, is that the Acting Register of Copyrights recommended expanding an exemption originally made for documentary filmmakers to now include a “subset of fictional filmmakers” who wish to use small portions of existing motion pictures in ways that would likely be considered fair uses.  In its lawsuit, the EFF hihglighted the USCO’s prior failure to include any “narrative” filmmakers in the last rule-making process as evidence of 1201’s “adverse impact on speech.”

One broad expansion of 1201 exemptions sought by EFF and others in this recent rulemaking procedure was a “Single Overarching Exemption for Purposes of Comment and Criticism.”  This proposal was rejected by the Acting Register, who found the petitioners’ approach too broad relative to the case-by-case analysis applied when considering fair use.  Characteristic of most parties determined to vitiate copyright, this proposal looks like yet another attempt to imply that copyright’s exceptions should be so overreaching as to render its protections meaningless.  

The USCO/LOC filed its Final Rule in this triennial procedure with the US District Court for the District of Columbia, and the EFF filed a response offering to provide a supplemental brief to support its allegation that 1201 is a “speech-licensing regime.” Otherwise, there has been no movement in the past two years on this litigation. 

On that score, even if the EFF’s 1201 case does proceed, I maintain that the decade or more of its prospective journey represents another anti-copyright boondoggle—a PR campaign akin to Lenz v. UMG—designed to keep donors and supporters active while achieving nothing.  As I mentioned in 2016, it seems absurd for EFF to dedicate its resources to this improbable constitutional challenge to 1201 rather than collaborate with the USCO, which continues to demonstrate a nuanced approach to balancing copyright’s protections with important exceptions to those protections.  

EFF says Section 1201 of the DMCA is Unconstitutional?

Last week, the Electronic Frontier Foundation filed suit against the federal government, naming the DOJ and the Copyright Office as defendants.  The EFF filed on behalf of plaintiffs Dr. Mitchell Green, a computer scientist and researcher at Johns Hopkins; Andrew Huang, an engineer and inventor; and Huang’s company Alphamax LLC.  The crux of the suit argues that Section 1201 of the DMCA, which prohibits circumventing technical protection measures (TPM), or trafficking in devices used for circumventing these measures that are designed to protect copyrighted works violates the First Amendment and is, therefore, unconstitutional.

The most common type of TPM consumers tend to be aware of are applications like the software on a DVD that prevents or mitigates illegal copying of the contents; but TPM are increasingly used in a broad range of devices and products because, of course, computers and software increasingly run everything we touch. For this reason, 1201 applies to a wide range of classes of copyrightable works, including software itself, and so the debate over the law invariably conflates movies and medical devices or cellphones and tractors, which means the public dialogue can be rather confusing for most of us.

We read a brief assertion in an article by Cory Doctorow—or even an opposing view—and the nitty-gritty may be ten pages of complex analysis by the Copyright Office that few people will read let alone fully understand.  Meanwhile, consumers should keep in mind that absent the provisions in 1201, products like DVDs, iPods, and Kindles would simply not exist because rights holders would not have licensed their works for distribution on these platforms. And it is characteristic of the EFF and its colleagues to focus on the restrictive aspects of a legal framework while ignoring the productive ones.

In simple terms, it is illegal to circumvent TPM, whether the copyrighted material being protected is entertainment media like an eBook or it’s the software that runs a medical device or the systems in your car. The EFF’s criticism weighs heavily on the fact that it is a violation of 1201 to circumvent TPM even if the intent is not to infringe copyright, but there are also permanent and termporary exemptions in force, recommended by the Register of Copyrights, that allow for circumvention in a number of circumstances. Every three years, the Copyright Office reviews applications for exemptions, though this process itself has been called “onerous” by the EFF and others and is likewise implicated in the question of constitutionality of the 1201 statute.

As mentioned, there are three named plaintiffs in this suit, though one can think of Andrew Huang and his company Alphamax as representing the same interests.  But in an effort to keep this post under 2,000 words, I’ll focus on the complaint regarding Dr. Green and EFF’s broad complaint that the Copyright Office triennial review process is itself stifling free speech.

That Dr. Matthew Green’s Security Research is Being Stifled

Likely, the most compelling and easiest to understand complainant is that of Dr. Green, who conducts important research into, among other things, the security systems of automobiles. This was the focus of his application for an exemption to 1201 during the last triennial session.

Dr. Green explains on his blog that because the Copyright Office failed to grant the exemptions he applied for, that a project underway in the Fall of 2015 had to be conducted in a manner less efficacious and less thorough than the best method available. He also implies that the opposition to his application from the Business Software Association might have carried undue, industry weight in the decision-making process.  But a review of the Register of Copyright’s analysis and conclusions regarding the relevant class of exemptions reveals that the Copyright Office was substantially more sympathetic to the testimony of Dr. Green and his co-applicants than it was to the opposition arguments of either the software or automotive industries.

In fact, the Copyright Office, in its Final Rule issued on October 28, 2015, recommended a broad exemption for “good faith” research like the work being conducted by Dr. Green, but it also recommended a 12-month waiting period to implement this exemption.  Although this delay may be a source of frustration for researchers and the EFF, it was not proposed due to industry opposition to the exemptions. Instead, the Copyright Office recommended the one-year delay in deference to various federal agencies that had weighed in with concerns regarding some of the proposed exemptions.

For instance, the EPA stated that certain aspects of the work to be conducted could “slow or reverse gains made under the Clean Air Act.”  How?  I have no idea.  But neither does the Copyright Office because they’re not authorized to have an opinion about the environment. So because some of the concerns raised are outside copyright’s purview, the Register proposed  the delay in order to give other federal agencies time to review. That’s what they’re supposed to do, and neither Dr. Green nor the EFF appear to acknowledge that there is an extent to which this research is being slowed by federal agencies which have nothing to do with copyright or Section 1201.

Moreover, the timing of EFF’s big play to argue the unconstitutionality of the entire law is odd in light of the fact that the Copyright Office is largely in agreement with applicants like Dr. Green. In fact, the Copyright Office could not have been more clear in its agreement that the current permanent exemptions for security research are not sufficient to protect Dr. Green and his colleagues from liability.  But when the office called for recommendations to 1201 in the beginning of this year, neither the EFF nor any of its sister organizations filed comments with a view toward amending these permanent exemptions.

So, one question worth asking is why the EFF does not use its considerable resources to seek amendment(s) to the permanent exemptions rather than work toward the less likely outcome that the entire statute will be declared unconstitutional?  After all, as a practical matter, if the real interest is enabling people like Dr. Green to work at his best as soon as possible, fixing the permanent exemptions is a far more practical enterprise than the prospect of having the Supreme Court vitiating all of 1201 several years from now. This seems especially true when the Register already agrees that the current statutes are inadequate.

That the Triennial Review Process is Stifling Speech

Roughly one-third of the EFF’s complaint focuses on the alleged inadequacy of the triennial review process itself. Their contention is that the process is so cumbersome and slow that it fails to fulfill its purpose to provide an adequate counter-balance to 1201’s restrictions and also constitutes a prior restraint on speech by delaying applicants’ ability to engage in otherwise legal, non-infringing research or publication.

Two things seem odd about this section of the complaint.  The first is that it focuses on 1201’s alleged, broad infringement of the speech of filmmakers* and teachers despite the fact that the named plaintiffs in the lawsuit applied for exemptions having nothing to do with filmmaking or teaching.  The second is that the Copyright Office actually did recommend exemptions for a large number of requests pertaining to filmmakers and teachers, though, apparently these did not go far enough for the EFF, which scorns rejections—like an exemption for “narrative filmmakers”—as evidence that 1201 is stifling speech.  Of course, considering this particular class of filmmaker begs detailed analysis because the majority of narrative film uses are not generally fair uses. So, this part of the complaint begins to sound like EFF may be making its usual free speech mountain out of a copyright molehill.

Also, with regard to the alleged onerousness of the review process, the public should note that the process is a rather large task resulting in decisions that have far-reaching implications throughout the market.  Exemptions apply to everyone, not just the applicants.  So, when the CO said that it’s cool for a K-12 teacher to “rip” film clips from his DVD collection to bring into class to teach film or cultural studies, that circumvention is now kosher for all teachers doing the same thing across the country. So, because these rulings are not narrow decisions (like fair use judgments), it seems reasonable that reviews happen triennially and that applicants bear some substantial burden to argue their cases for various exemptions.  The CO’s complete review of the last round of applications is over 400 pages long.  How frequently should the agency engage in that level of detailed analysis and make recommendations that have considerable effect in the market, and which must conform to existing laws beyond the scope of copyright?

And once again, the timing of this complaint is curious because the Register earlier this year recommended that, going forward, all successful petitions not opposed in the next review cycle need not be re-litigated.  This is relevant because the EFF specifically cites the need to re-apply for exemptions every three years as evidence of undue burden, but it ignores the fact that the Copyright Office acknowledges the issue and is making recommendations to mitigate the problem.  So, the big question reprises:  Why is EFF more eager to try to strike down the entire law than it is to work with the Copyright Office to address some of the very flaws the Register agrees exist?

Based on just the complexities I have tried to articulate here—and which only scratch the surface—it seems unlikely the First Amendment complaint will make as much progress as it will make noise. Yes, we want to protect fair use for expression and the ability of researchers to ensure our safety and security while living with our computerized products. But the record indicates that the Copyright Office is in synch with these views.  We’ll see what the courts say.